NEGOTIATING THE MEANING OF “LAW”: THE METALINGUISTIC DIMENSION OF THE DISPUTE OVER LEGAL POSITIVISM

One of the central debates in legal philosophy is the debate over legal positivism. Roughly, positivists say that law is ultimately grounded in social facts alone, whereas antipositivists say it is ultimately grounded in both social facts and moral facts. In this paper, I argue that philosophers involved in the dispute over legal positivism sometimes employ distinct concepts when they use the term “law” and pick out different things in the world using these concepts. Because of this, what positivists say might well then be true of one thing (e.g., law1) but false of another (e.g., law2). Accepting this thesis does not mean that the philosophers engaged in this dispute are “talking past each other” or engaged in a “merely verbal dispute” that lacks substance. I argue that participants in this dispute are sometimes arguing about what they should mean by the word “law” in the context at hand. This involves putting forward competing proposals about which concept the word “law” should be used to express. This is an issue in what I call “conceptual ethics.” This argument in conceptual ethics can be well worth having, given the connotations that the term “law” plays in many contexts, ranging from legal argument to political philosophy to social-scientific inquiry. Sometimes, I claim, philosophers (and ordinary speakers) engage in such argument tacitly by competing “metalinguistic” usages of the term “law”—usages of the term that express a view (in this case, a normative view) about the meaning of the word itself. In such cases, speakers on different sides of the positivism debate might in fact both speak truly, in terms of the literal (semantic) content of what they both say. Nonetheless, they may disagree in virtue of views in conceptual ethics about “law” that they express through the nonliteral content of what they say. These views in conceptual ethics often reflect further disagreements about issues that are not ultimately about words or concepts. These include foundational ones in ethics and politics about how we should live and what kind of institutions should govern our lives. My metalinguistic account of the dispute over legal positivism better equips us to identify what such issues are and to engage them more fruitfully.

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